Last week the Trump administration asked the Supreme Court to block a ruling by a federal judge in San Francisco in a challenge to a new U.S. policy on asylum, announced last month as thousands of migrants moved from Central America towards the U.S. border. The rule would prohibit immigrants who enter the United States illegally along the southern border from seeking asylum, but U.S. District Judge Jon Tigar barred the government from enforcing the rule, so the government asked the Supreme Court to put that order on hold while the government appeals to the U.S. Court of Appeals for the 9th Circuit and, if necessary, the Supreme Court.
Today the immigration groups challenging the rule weighed in, counseling the justices to stay out of the dispute. The groups received a somewhat unexpected boost from a group of former Department of Justice officials who served in Republican administrations and filed a “friend of the court” brief that also urged the court to deny the Trump administration’s request.
In their brief, the immigration groups emphasized that, by requiring asylum seekers to enter the United States legally, the new policy is directly contrary to the text of federal immigration law, which makes clear that anyone who is in the United States can apply for asylum, no matter how they came to this country.
The immigration groups push back against the Trump administration’s efforts to justify the new rule on the ground that a flood of refugees has created an “unmanageable crisis” at the border. The number of refugees entering the United States is not, they say, “historically high.” But even if it were, the groups continue, it would be up to Congress – rather than the president and the executive branch – to make changes to the U.S. asylum scheme. Quoting a dissent by Justice Neil Gorsuch, the groups stress that if “a statute needs repair, there’s a constitutionally prescribed way to do it. It’s called legislation.”
The groups are also openly skeptical of the government’s suggestion that the rule was intended to protect health and safety. They write that the refugees seeking asylum “are fleeing violence and death in the most dangerous countries on earth. A rule that would turn them away and send them back to situations where they have a well-founded fear of persecution or death will not promote their health and safety.”
Finally, the groups note that Tigar’s order expires on December 19, just two days away, when he has scheduled a hearing. If the government wins on Wednesday, the groups observe, there will be no need for the Supreme Court to act. And if the groups win, then the government will have to ask the lower courts and, if necessary, the Supreme Court, to step in again, because it will be dealing with a different order based on different facts.
The group of high-level Department of Justice officials includes two former acting attorneys general (Peter Keisler and Stuart Gerson), a former director of both the Central Intelligence Agency and Federal Bureau of Investigation (William Webster) and a former State Department legal adviser (John Bellinger). Represented by attorney Richard Bernstein of the law firm Willkie Farr & Gallagher, the DOJ officials agree with the immigration groups that the government’s request should be denied.
The DOJ officials tell the justices that the federal government’s interpretation of asylum law “would improperly delegate from Congress to an agency a decision that has been of enormous political significance for decades—what privileges and rights to recognize for aliens who cross the southern border illegally.” And, they say, because the law so clearly supports the groups’ interpretation, there is no need for the justices to evaluate “the wisdom or efficacy of this Adminstration’s asylum policy choices, or whether they would cause a humanitarian emergency.”

Amy L HoweUntil September 2016, Amy served as the editor and reporter for SCOTUSblog, a blog devoted to coverage of the Supreme Court of the United States; she continues to serve as an independent contractor and reporter for SCOTUSblog. Before turning to full-time blogging, she served as counsel in over two dozen merits cases at the Supreme Court and argued two cases there. From 2004 until 2011, she co-taught Supreme Court litigation at Stanford Law School; from 2005 until 2013, she co-taught a similar class at Harvard Law School. She has also served as an adjunct professor at American University’s Washington College of Law and Vanderbilt Law School. Amy is a graduate of the University of North Carolina at Chapel Hill and holds a master’s degree in Arab Studies and a law degree from Georgetown University.